On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L- 2446-99.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal requires us to determine the standard that governs a motion for relaxation of the thirty-day period allowed under Rule 4:21A-6(b)(1) for service of a trial de novo demand when the demand has been filed in a timely manner.
Plaintiff Flett Associates brought this action for the recovery of $28,343.31 in fees for engineering services provided to defendant S.D. Catalano. Defendant filed a counterclaim seeking damages for alleged deficiencies in the work plaintiff performed and for defamation.
The case was arbitrated in accordance with Rule 4:21A- 1(a)(3), resulting in an award in plaintiff's favor for $22,564.50 rendered on January 7, 2002. Defendant subsequently authorized its counsel to file a demand for a trial de novo.
Defendant's counsel prepared the demand and instructed his secretary to file it with the court and serve plaintiff. The secretary sent the demand to the clerk by overnight mail on the afternoon of February 4, 2002, and the demand was filed on February 6, 2002, within the thirty-day period allowed under Rule 4:21A-6(b)(1). The secretary intended to serve the demand upon opposing counsel the next morning by fax and regular mail. However, she fell that evening, suffering a broken wrist which required surgery and kept her out of work for more than a month. As a result, the secretary failed to send the demand to plaintiff's counsel. She also failed to inform the attorney who had instructed her to serve the demand that she had not done so.
On February 19, 2002, defendant's counsel received a trial notice from the court setting an April 8, 2002 trial date. The next day, defendant's counsel received a motion by plaintiff for confirmation of the arbitration award. He became aware in a subsequent telephone conversation with plaintiff's counsel that the trial de novo demand had not been served. Consequently, on February 21, 2002, defendant's counsel served a copy of the demand upon plaintiff's counsel. However, plaintiff's counsel refused to withdraw his motion for confirmation of the award.
The trial court concluded in an oral opinion that it was compelled by existing case law to grant plaintiff's motion for confirmation of the arbitration award. Although expressing a"personal" opinion that"this case screams out for relief and relaxation of this Draconian rule" based on the secretary's"unfortunate accident," the court felt it lacked authority to grant such relief.
Rule 4:21A-6(b)(1) provides:
An order shall be entered dismissing the action following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule.
Rules 4:21A-1 to -8 were originally adopted in 1986 to implement the provisions of N.J.S.A. 39:6A-24 to -35 which mandate arbitration of certain automobile negligence cases. The rules were comprehensively amended in 1989 to apply also to the arbitration of personal injury cases where the amount in controversy is $20,000 or less, in which arbitration is mandated by N.J.S.A. 2A:23A-20 to -30. Pressler, Current N.J. Court Rules, comment 1 on R. 4:21A (2003).*fn1 Rule 4:21A-6(b)(1) implements N.J.S.A. 39:6A-31 and N.J.S.A. 2A:23A-26, which provide that unless one of the parties to the ...